HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 1221 OF 200.KASHMIR DISTILLERS PVT. LTD Petitioners State and ors Respondent !MR. D.S.THAKUR, Sr.ADV WITH MS.ARUNA-ADV ^MR. G.S.THAKUR HONBLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR-JUDGE. Date:
16. 11.2012 :
:
1. The petitioner is seeking direction to the respondents for payment of Rs. 26,64,762/- along with interest calculated in terms of section 24-B of the Jammu and Kashmir Excise Act, SVT.1958 (for short Act of 1958), which were recovered from him as staff charges. 2/ Respondents have filed reply affidavit/objections. 3/ Learned Senior counsel for the petitioner submitted that on the strength of Rule 17 of Jammu and Kashmir Distillery Rules 1946 (for short rules of 1946), the petitioner was made to pay the amount on account of staff charges by the respondents. Learned counsel further submitted that Show Cause Notice issued by the respondents was challenged by the petitioner along with some other persons in OWP 246/1999, which petition was dismissed by the writ Court vide order and judgement dated 16-02-1999 and LPA 150/1999 filed against the said judgement also was dismissed by the LPA bench vide its order dated 14-12-2000. Learned counsel further submitted that after dismissal of the LPA, the petitioner paid the amount on account of staff charges, for which notice was issued. Learned counsel further submitted that some other persons to whom similar notices were issued after their challenge to notices issued by the respondents failed before this Court, they filed SLP before the Honble Supreme Court which was allowed and rule 17 of the Rules of 1946, was held to be lacking statutory backing and was further held to be in excess of the Act of 1958 ; manifestly unjust and arbitrary and that the said provision was clearly a tax and not a fee. Learned counsel submitted that the Honble Supreme Court directed for refund of the amount paid by the appellants therein. Learned counsel further submitted that the judgement was handed down by the Honble Supreme Court on 19-04-2007 and thereafter cause accrued to the petitioner for filing of this petition for seeking refund/payment of the amount already charged and realized from him, which was filed within the period of limitation for institution of Suits. Learned Senior counsel submitted that rule 17 of the Rules of 1946, having been held to be illegal, the right of the petitioner to seek a direction for payment of amount already recovered from him is lawful and just in the facts and circumstances of this case. Learned counsel, in support of his contention, referred to the judgement of the Honble Supreme Court in Case No. Appeal(Civil) 2700-2701 of 2000 titled M/s. Gupta Modern Breweries versus State of J&K and others. Learned counsel, in his fairness, also referred to the judgements of the Honble Supreme Court which, in his wisdom, are not favoring him and also to the judgement which are favoring the claim of the petitioner. He, in this behalf referred to the judgements of the Honble Supreme Court in cases 1986(4)SCC titled State of Madhya Pradesh versus Nandlal, 1989(2) SCC 35.titled Rup Dioamonds versus Union of India, 1986 SCC(4) 566 titled State of Madhya Pradesh versus Nandlal Jaiswal, 1974 (1)SCC 317.titled Ram Chandre Shankar Devdhar versus State of Maharashtra, 1984 (2) SCC 33.titled H.D.Vooru versus State of Maharashtra, 1988 (1) SCC 401.titled Salonah Tea Company versus Superintendent of Taxes, 1989 (2) SCC 35.titled Rup Diamonds versus Union of India, 1989 (1) SCC 546.titled P.L.Shah versus Union Of India, and 1964 SC 1006.titled State of Madhya Pradesh versus Bhai Lal. Learned counsel also referred to section 24-B of the Act of 1958 and submitted that the petitioner is entitled to seek payment of money which has been recovered from him wrongly. 4/ Learned counsel for the respondents submitted that the petitioner is precluded from seeking the relief sought for in this writ petition for the reason that in the year 1991, he had filed a writ petition seeking almost same reliefs. Learned counsel referred to the reply affidavit filed by the respondents and submitted that in reply to paragraphs 4 to 9 of the writ petition, the respondents have reproduced the reliefs sought for in the earlier writ petition filed by the petitioner. He further submitted that the writ petition as also the LPA, having been dismissed and the petitioner, thereafter, having not challenged the said orders before the Honble Supreme Court, the decision against the petitioner has attained finality and he cannot seek the benefit from the judgement of the Honble Supreme Court in M/s. Gupta Modern Breweries versus Sate of J&K and others, wherein rule 17 of the Rules of 1946, was held to be illegal. Learned counsel further submitted that the petitioner cannot claim payment of money which has already been recovered from him in view of the law laid down by the Honble Supreme Court in case titled Maftlal Industries Ltd. And others appellants, versus Union of India and others respondents passed on 19-12- 1996, reported in (1997) 5 SCC 536.Learned counsel, accordingly, prayed for dismissal of the writ petition. 5/ Section 24-B of the Act of 1958 and rule 17 of the Rules of 1946 are taken note of : 24-B. Any amount of duty, tax, fine or fee paid by any person which was not payable under this Act shall be refunded to such person along with interest for the period of default at the rate of 2% per month : Provided that if such amount has been recovered by the said person from any other person then such other person only shall be entitled to refund : Provided further that if any amount has been refunded to a person who is not entitled to it, it shall be recovered from him as arrears of land revenue. Rule 17: The licensee shall, if required by the Excise and Taxation Commissioner, make into the Government treasury such payment as may be demanded on account of the salaries of the Government excise establishment posted to the distillery, but he shall not make any direct payment to any member of such establishment. 6/ In the case on hand, admittedly, a notice for payment of the staff charges was challenged before the Court by the petitioner in OWP 246/1991, wherein he had prayed for issuance of writ of mandamus to strike down the rules 15,16 and 17 of the Rules of 1946 as ultra vires of the Jammu and Kashmir Excise Act and provision of the Constitution of India and also prayed for issuance of writ of Certerori to quash the notice of demand letters and reminders wherein petitioner was asked to pay the amount as mentioned in the said notices on account of staff charges of Excise staff posted at the Distillery owned by the petitioner. It was also prayed that the respondents be restrained from demanding or recovering the amount mentioned in the aforesaid notices. 7/ As already stated , writ petition as also the LPA was dismissed by the Court. In the judicial process, the petitioner was, thus, held liable to pay the staff charges as were raised against him in the notices issued by the respondents. The judgement of the Court attained finality and, thus, binds the petitioner. The petitioner on this score is precluded from filing this petition. 8/ Section 24-B of the Act of 1958, would not be attracted in the facts of this case, in as much as, by judicial process, the contention of the petitioner in the earlier round of litigation, that demand for payment is made illegally, has been turned down. Section 24-B of the Act of 1958 would come into play only in the case of a person where decision is taken either by the concerned authorities that the tax, fine or fee, has been recovered, though same was not recoverable under the Act of 1958 or when the Court of law would hold that the amount was not payable under the Act of 1958. In the case of the petitioner, as already stated, the Court of law had not accepted his claim of notice of payment being illegal. In the facts of this case, it cannot be said that the amount which was recovered from the petitioner was not payable under the Act of 1958. Rule 17 of the Rules of 1946 was declared to be illegal and unjust by the Honble Supreme Court vide judgement handed down on 19-04-2007. Declaration of Act/provision of law or Rule unconstitutional would take effect from the date of the judgement. The petitioner would not be entitled to seek benefit under the judgement of the Honble Supreme Court in M/s. Gupta Modern Breweries versus State of J&K & others, which was decided on 19-04-2007. In that case, the Honble Supreme Court directed for refund of the payment made in the interregnum with interest calculated at the statutory rate as in terms of the interim order passed by the Honble Supreme Court in that case, it was provided that in case the appeals are ultimately allowed, the respondents shall pay, on the refund ordered, interest at the statutory rate . Since the Supreme Court had protected the rights of the appellant therein by the interim order, it, accordingly, directed for refund of the payment made during the pendency of the appeal. Section 24-B of the Act of 1958 came into play in that case because rule 17 of the Rules of 1946, under which the payment was recovered, was held to be illegal and it was the interim order of the Honble Supreme Court coupled with section 24-B of the Act of 1958, which, by declaration of the rule 17 of the Rules of 1946 to be illegal, came into play in that case, the refund was ordered. In the case of the petitioner, the authority, under which the respondents charged and recovered staff charges from the petitioner, was not held to be illegal and, accordingly, section 24-B of the Act of 1958 is not attracted in the facts of the case of the petitioner. 9/ Perusal of the writ petition would reveal that it is not pleaded by the petitioner in the writ petition that he has not passed on the burden to some other person/consumers. In order to seek benefit of recovery of the amount paid by the petitioner, he had to, specifically, plead in the writ petition that the amount paid by him is not recovered by him from any other person or from the consumers. In absence of the pleadings in the writ petition, this petition is not maintainable and further in view of the law laid down by the Honble Supreme Court in case Maftlal Industries Ltd. And others appellants, versus Union of India and others respondents, decided on 19-12-1996 and reported in (1997) 5 SCC 536.paragraphs 78 & 80 whereof are reproduced here in below, this petition, being meritless, would require to be dismissed : ...78. There is, however, one exception to the above proposition, i.e. where a provision of the Act whereunder the duty has been levied is found to be unconstitutional for violation of any of the constitutional limitations. This is a situation not contemplated by the Act. The Act does not contemplate any of its provisions being declared unconstitutional and therefore it does not provide for its consequences. Rule 11/Section 11 B are premised upon he supposition that the provisions of the Act are good and valid. But where any provision under which duty is levied is found to be unconstitutional, Article 265 steps in. In other words, the person who had paid the tax is entitled to claim refund and such a claim cannot be governed by the provisions in Rule 11/Section 11-B. The very collection and/or retention of tax without the authority of law entitles the person, from whom it is collected, to claim its refund. A corresponding obligation upon the State to refund it can also be said to flow from it. This can be called the right to refund arising under and by virtue of the constitutional provisions, viz, Article 2645. But , it does not follow from this that refund follows automatically. Article 265 cannot be read in isolation. It must be read in the light of the concepts of economic and social justice envisaged in the Preamble and the guiding principles of State Policy adumbrated in Articles 38/39- an aspect dealt with at some length at a later stage. The very concept of economic justice means and demands that unless the claimant ( for refund) establishes that he has not passed on the burden of the duty/tax to others, he has no just claim for refund. It would be a parody of economic justice to refund the duty to a claimant who has already collected the said amount from his buyers. The refund should really be made to the persons who have actually borne its burden- that would be economic justice. Conferring an unwarranted and unmerited monetary benefit upon an individual is the very antithesis of the concept of economic justice and the principles underlying Articles 38 and 39. Now, the right to refund arising as a result of declaration of unconstitutionality of a provision of the enactment can also be looked at as a statutory right of restitution. It can be said in such a case that the tax paid has been paid under a mistake of law which mistake of law was discovered by the manufacturer/assessed on the declaration of invalidity of the provision by the court. Section 72 of the Contract Act may be attracted to such a case and a claim for refund of tax on this score can be maintained with reference to Section 72. This too, however, does not mean that the taxes paid under an unconstitutional provision of law are automatically refundable under Section 72. Section 72 contains a rule of equity and once it is a rule of equity, it necessarily follows that equitable considerations are relevant in applying the said rule- an aspect which we shall deal with a little later. Thus, whether the right to refund of taxes paid under an unconstitutional provision of law is treated as a constitutional right flowing from Article 265 or as a statutory right/equitable right affirmed by Section 72 of the Contract Act, the result is the same- there is no automatic or unconditional right to refund.
80. For the purpose of this discussion, we take the situation arising from the declaration of invalidity of a provision of the Act under which duty has been paid or collected, as the basis, inasmuch as, that is the only situation surviving in view of our holding on (I) and (II) . In such cases, the claim for refund is maintainable by virtue of the declaration contained in Article 265 as also under Section 72 of the Contract Act as explained hereinbefore, subject to one exception; Where a person approaches the High Court or the Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be reopened on the basis of a decision on another persons case; this is the ratio of the opinion of Hidayatullah, CJ, in Tilokchand Motichand and we respectfully agree with it. In such cases, the plaintiff may also invoke Section 17 (1) ) of the Limitation Act for the purpose of determining the period of limitation for filing a suit. It may also be permissible to adopt a similar rule of limitation in the case of writ petitions seeking refund in such cases. But whether the right to refund or restitution, as it is called, is treated as a constitutional right flowing from Article 265f or a statutory right arising from Section 72 of the Contract Act, it is neither automatic nor unconditional. The position arising under Article 265 is dealt with later in paras 84 to 86. Here we shall deal with the position under Section 72. Section 72 is a rule of equity. This is not disputed by Shri F.S. Nariman or any of the other counsel appearing for the appellants-petitioners. Once it is a rule of equity, it is un understandable how can it be said that equitable considerations have no place where a claim is made under the said provision. What those equitable considerations should be is not a matter of law. That depends upon the facts of each case. But to say that equitable considerations have no place where a claim is founded upon Section 72 is, in our respectful opinion, a contradiction in terms . Indeed, in Kanhaiya Lal, the Court accepts that the right to recover the taxes or the obligation of the State to refund such taxes-under section 72 of the Contract Act is subject to questions of estoppels, waiver, limitation or the like, but at the same time, the decision holds that equitable considerations cannot be imported because of the clear and unambiguous language of Section 72. With great respect, we think that a certain amount of inconsistency is involved in the aforesaid two propositions. Estoppel waiver... or the like, though rules of evidence are yet based upon rules of equity and good conscience. So is Section 72. We are, therefore, of the opinion that equitable considerations cannot be held to be irrelevant where a claim for refund is made under Section 72. Now, one of the equitable considerations may be the fact that the person claiming the refund has passed on the burden of duty to another. In other words, the person claiming the refund has not really suffered any prejudice or loss. If so, there is no question of reimbursing him. He cannot be recompensated for what he has not lost. The loser, if any, is the person who has really borne the burden of notwithstanding the fact that it is he who has paid the duty. Where such a claim is made, it would be wholly permissible for the court to call upon the petitioner/plaintiff to establish that he has not passed on the burden of duty to a third party and to deny the relief of refund if he is not able to establish necessary remember that whether the burden of the duty has been passed on to a third party is a matter within the exclusive knowledge of the manufacturer. He has the relevant evidence- best evidence- in his possession. Nobody else can be reasonably called upon to prove that fact. Since the manufacturer is claiming the refund and also because the fact of passing on the burden of duty is within his special and exclusive knowledge, it is for him to allege and establish that he has not passed on the duty to a third party. This is the requirement which flows from the fact that Section 72 is an equitable provision and that it incorporates a rule of equity. This requirement flows not only because Section 72 incorporates a rule of equity but also because both the Central excises duties and the customs duties are indirect taxes which are supposed to be and are permitted to be passed on to the buyer. That these duties are indirect taxes, meant to be passed on, is statutorily recognized by Section 64-A of the Sale of Goods Act, 1930 { which was introduced by the Indian Sale of Goods (Amendment) Act, 1940 and substituted later by Act 33 of 1963. As originally introduced, Section 64-A read. 64-A. In the event of any duty of customs or excise on any good being imposed, increased, decreased or remitted after the making of any contract for the sale of such goods without stipulation as to the payment of duty where duty was not chargeable at the time of the making of the contract, or for the sale of such goods duty-paid where duty was chargeable at that time a) if such an imposition or increase so takes effect that the duty or increased duty, as the case may be, or any part thereof, is paid, the seller may add so much to the contract price as will be equivalent to the amount paid in respect of such duty or increase of duty and he shall be entitled to be paid and to sue for and recover such addition; and b) if such decrease or remission so takes effect that the decreased duty only or no duty, as the case may be, is paid, the buyer may deduct so much from the contract price as will be equivalent to the decrease of duty or remitted duty, and he shall not be liable to pay, or be used for or in respect of, such deduction. 10/ The decisions of the Honble Supreme Court cited at Bar by learned Senior Counsel for the petitioner do not support the claim of the petitioner, being, on facts, not similar to the case on hand. 11/ For the reasons recorded in this judgement and in view of the law laid down by the Honble Supreme Court supra, this petition is held to be meritless and is, accordingly, ordered to be dismissed along with connected CMPs. TARIQ MOTA JAMMU 1 -11-2012 (MUZAFFAR HUSSAIN ATTAR) J